President Trump’s attempt to declare a national emergency to shift $5 billion from other accounts towards the focal point of his political platform will draw lots of ire from members of Congress from both sides of the aisle. Speaker Pelosi (D-CA) said the move represented “naked contempt for the rule of law” and Sen. Collins (R-ME) said that it “undermines the role of Congress and the appropriations process.”
These complaints are undoubtedly true, and Congress has ceded way too much power to the executive branch already. The appropriateness and legality of Trump’s power grab of the purse strings will be determined in the months and possibly years to come.
But it’s hard for Congress to have much credibility on the rule of law and the integrity of the appropriations process when they continue to use blatant budget gimmicks and loopholes to skirt spending rules that are closely comparable to the sins that they accuse President Trump of violating.
The argument against the border emergency rests on two things: shifting money Congress designated for a certain purpose towards another unrelated purpose and the fraught definition of “emergency” when border crossings have been occurring for decades.
The bill that passed this week contained $24 billion that violate those two exact principles – the use of Changes in Mandatory Spending (CHIMPs) to dubiously shift money around and the Overseas Contingency Operations (OCO) that relies on an extremely generous definition of “emergency.”
Changes in Mandatory Spending (CHIMPs) is the trick where Congress creates fake savings by capping mandatory spending accounts and turns it into real spending. To best explain it, we can use an illustration:
“Let’s just say you collect 10 bananas to put in your banana stand. You only eat 2 of them, thus having 8 left over to use for phone calls. The next day, you eat 2 of the remaining bananas in your banana stand. In every jungle around the world, you would now have 6 bananas left. Except in Congress, where they claim that you now have 14 bananas in your banana stand: 8 that you didn’t eat yesterday and 6 that you didn’t eat today. And since there is always money in Congress’ banana stand – Congress can use those 14 bananas (8 of which are fake) to spend on brand new courthouses or science studies or really anything else in the federal budget.”
This week’s bill used $15.8 billion in CHIMPs to get around the caps. The largest account that Congress uses for this trick is the Crime Victims Fund – a pot of money comprised of fines on criminals that are supposed to go towards the victims of the crimes. But Congress only sends a portion of the available funds to actual crime victims. This year they capped the amount at $3.3 billion. Since they are not spending the full $12 billion on victims of crimes, they claim that the $8 billion that could have been spent is savings that can be spent elsewhere. They “didn’t spend” that exact same money last year, and the year before that, and the year before that.
Over the last decade, Congress has used a roughly $10 billion pot of money designated for crime victims to spend an extra $100 billion on other unrelated thingsRep. Jody Arrington (R-TX) said it best when he called it to an Enron-like scam that would land private businessmen in jail.
To help, here is Matthew McConaughey explaining CHIMPs in this Wolf On Wall Street parody.
The other issue that will be hotly contested is whether there is truly an emergency at the border. Congress has already obliterated the definition of emergency funding to boost defense spending through Overseas Contingency Operations(OCO) funding. This designation began after the 9/11 attacks and the wars in Afghanistan and Iraq. Funds for these efforts do not apply to budget restrictions.
The definition of emergency under the Balanced Budget and Emergency Deficit Control Act is that the spending is “sudden … urgent … unforeseen … and temporary.” Yet, 18 years later, Congress is still using a special designation to justify war spending that is not subject to budget caps, even though it is clearly foreseen and can and should be budgeted for on an annual basis. A GAO report found that $20 to $30 billion of annual OCO funding – nearly half of all OCO spending in some years – was actually for activities that will endure beyond the “contingency” operations.
This is like setting a strict monthly entertainment budget and then charging concert tickets to a different uncapped category called “treat yo self.”
But folding OCO spending into the base budget means that Congress could not use OCO as a slush fund to get around spending caps. For example, in 2014, the Senate appropriations chairman tried to shift $4.3 billion in State Department funding into OCO to make up for a shortfall in FHA receipts that squeezed the discretionary budget. More recently, the Senate Chairman of the Armed Forces Committee, Jim Inhofe (R-OK), expressed his desire to significantly increase defense spending utilizing an “exaggerated” OCO number.
The defense spending bill that passed in September included $67 billion in OCO funds, and the spending bill that passed this week got its slush on to the tune of $8 billion in State Department programs and another $165 million for DHS programs.
After nearly two decades, the idea that any of these activities are unpredictable and cannot be budgeted for is laughable. But the slush fund is too lucrative for Congress to put away.
To help illustrate this gimmick, once again here is Matthew McConaughey explaining OCO in a True Detective parody.
As the debate transitions towards the President’s attempt to utilize national emergency authority to shift funds towards a border wall, there will be lots of justified outrage from members of Congress. But as Congress makes their case, they should look in the mirror and fix their own blatant problems that play the same games with our tax dollars.